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Judgment
New India Assurance Company Limited, Yavatmal, through its Regional Manger is in this appeal challenging the judgment and award passed by
learned Chairman Motor Accident Claims Tribunal, Yavatmal dated 17.11.2007. By the said award, the learned Chairman has partly allowed the
claim petition filed on behalf respondent nos.1 to 6 under Section 166 of the Motor Vehicles Act and granted compensation of Rs.2,92,000/Â inclusive
of no fault liability claim along with interest at the rate of 9% per annum from the date of petition till the amount is deposited in the tribunal.
Respondent nos.1 to 6 were required to file claim petition since the person on whom they were depending, lost his life in vehicular accident dated
02.02.2000 near Kolambi fata. Respondent no.1 is widow, respondent nos. 2 to 4 are the minor son and minor daughters, who were aged about 7
years, 5 years and 3 years at the time of accident and the respondent nos.5 and 6 are the parents of the deceased. Deceased Tulshiram Chavan
was traveling in the ill fated vehicle having registration No.MHÂ29/C406. Respondent no.7ÂManohar Gotfode (his name is deleted from the array
of respondents in this appeal on the application moved by the present appellant). When the said vehicle reached to Kolambi fata and when it was
driven in very high and abnormal speed, due to sudden application of breaks, deceased Tulshiram was thrown out of vehicle and he received serious
injuries all over his body as it could be seen from Exh.Â36, the post mortem report. He died due to those grievous injuries. On the report lodged by
one Rameshwar Pawar, a crime was registered with Police Station Wadgaon, District Yavatmal for an offence punishable under Section 304ÂA of
the Indian Penal Code vide Crime No.14/2000 against Manohar Gotfode. The FIR is at Exh.Â33. Spot panchanama is at Exh.Â34. Respondent
nos.1 to 6 filed the claim petition under Section 166 and claimed compensation against the non applicants therein including the present appellant, to the
tune of Rs.4,00,000/Â.
The claim petition was hotly contested by the appellantinsurance company by filing the written statement (Exh.Â24). In the written statement, a
plea was taken by the appellant that though the offending vehicle was duly insured, it was insured as private vehicle and not as commercial vehicle.Â
It was also pleaded in the written statement that after the accident, the insurance company has done investigation and in the said investigation, it was
found that at the relevant time, in the vehicle in question, about 20 to 22 passengers were travelling by paying fare. Thus, according to the appellant,
there was a breach of condition of the policy. It was also stated that the driver of the vehicle drove the vehicle in rash and negligent manner.Â
Therefore, the insurance company is not liable to pay the compensation.
After pleadings were completed, issues were framed. Yamunabai, the unfortunate widow, who was claimant no.1, entered into the witness box.Â
She was crossÂexamined by the learned counsel for the insurance company. Various documents were proved in her evidence. Claimants also
examined one Ulhas Rathod as PW2. His evidence was also challenged in the crossexamination at the behest of the insurance company. The
insurance company also examined its witness Murlidhar Bhandarkar, Assistant Branch Manager and closed its case. The Court below, after
appreciating the pleadings, documents and evidence brought on record, passed the impugned judgment, thereby partly allowing the claim petition filed
by the claimants. Under the said award, non applicant nos.1 to 3 in the said claim petition, including the appellant, were directed to pay jointly and
severally Rs.2,92,000/Â. Hence, this appeal.
After hearing Mr. Joshi, learned counsel for the appellant and Mr. Bhalerao, learned counsel for the original claimants, the only point that falls for
my determination is as under:
(i) Whether the Court below has wrongly fastened the liability upon the appellant and whether to that extent the judgment and award passed by the
Court below required to be interfered with?
(ii) What order?
This appeal was taken up for hearing on 28.08.2018. On the said day, the learned counsel for the appellant made elaborate submissions in support
of the claim of the insurance company for setting aside the judgment and award passed by the Court below. On the said day, submission of the
learned counsel for the appellant was that the policy in question was an “Act Policy†and, therefore, since the deceased was occupant of the
vehicle, he cannot be termed as a “Third Partyâ€. Therefore, it was wrong on the part of the Court below to direct the insurance company to
pay and/or indemnify the owner of the vehicle. To buttress his submission, he relied on decision of this Court in New India Assurance Co. Ltd. Vs.
Ranglal Punju Nikam & Ors.; reported in 2007 (4) Mh.L.J.321 and the verdict of the Hon'ble Apex Court in United India Assurance Co. Ltd. Shimla
Vs. Tilak Singh & Ors; reported in (2006) 4 SCC 404. The point, as to how it is an Act Policy, on the said day, learned counsel for the appellant
invited my attention to Exh.Â66 and invited my attention to the top of Exh.Â66, where there is a printing “Niji Car IXÂ1â€. Therefore, it was his
submission that it was an Act Policy. On the said day, since the Court time was over, the matter was kept today for further hearing as a part heard
matter.
Today, when the matter was taken up for final hearing, at that time, Court pointed out the contents of Exh.Â38 and Exh.Â66. Therefore, the
learned counsel for the appellant accepted and conceded that policy Exh.Â66 and the cover note Exh.Â38 were not “Act Policy†but it was a
“Comprehensive Policyâ€.
Had it was an Act Policy then occupants of the said private vehicle were not third party. However, in view of the law laid down by the Hon'ble
Apex Court in National India Insurance Co.Ltd. Vs. Balkrishan and anr., reported in 2013 ACJ 199, risk of the occupant of the vehicle is covered
under comprehensive/packaged policy. It appears that only to give a go bye to this law laid down by the Hon'ble Apex Court, the submissions were
made before me by the insurance company that it was an Act Policy.
It is the submission of the learned counsel for the appellant that the vehicle was insured as private vehicle. However, in the vehicle 20 to 22 persons
were travelling by paying fare. The written statement would show that this plea was taken by the insurance company on the basis of the
investigation done by the investigator appointed by the insurance company. Thus, according to the insurance company, there was a breach of
condition of policy and, therefore, the insurance company cannot be held liable to pay compensation.
Mere allegation and/or pleadings in the written statement about breach of the policy are not sufficient for the insurance company to get itself
absolved from the liability. The insurer is under obligation to prove before the tribunal the breach by adducing convincing evidence. Not only that,
the insurer is further under obligation to prove that the said was intentional.
Though burden was on the insurance company to prove its defence that at the relevant time, there was wilful breach on the part of the insurer by
accepting fare from the occupants of the vehicle including the deceased Tulshiram, it appears from the record that the said defence is not at all proved
by the insurance company.
Manohar Bhandarkar, Assistant Manager, the witness who was examined by the insurance company is totally silent in his evidence that the
passengers were travelling by making payment of fare. When the widow Yamunabai was under the crossÂexamination of the learned counsel for
the insurance company even at that time, such a suggestion was not given by the insurance company that her deceased husband paid fare either to the
driver or to the owner of the insured vehicle. Not only that, in order to prove that the driver was rash and negligent. The claimants themselves
examined one Ulhas Rathod, who was one of the occupants of the said vehicle. When this best witness was available with the insurance company
to prove its defence, even to this witness there was not even a remote suggestion that he or any of the occupant paid the fare.Â
In order to buttress his submission that the occupants paid the fare, the learned counsel for the appellant submitted that there are statements of
occupants namely; Ramesh Pawar, Dhansing Pawar, Vasant Rathod and Kacharu Ramteke. Statements of these persons were recorded under
Section 161 of the Code of Criminal Procedure by the investigating officer who investigated into Crime No.14/2000, which was registered against the
driver of the ill fated vehicle. I am afraid that the statements recorded by the investigating officer during the course of investigation under Section
161 of the Code of Criminal Procedure can be an admissible piece of evidence even for the limited purpose. It was always open for the insurance
company to summon either to the investigating officer, who has recorded their statements and/or those persons whose statements were recorded to
prove the fact that they paid fare. Nothing that sort of was done by the insurance company. Not only that when one of the occupants Ulhas
Ratod was available for crossÂexamination, as noted above there was no suggestion to him that he and/or the deceased paid any fare. Thus, it is
clear that the said defence is taken only for the purpose of defeating claim of the claimants.
Insofar as another submission that liability of the insurance company was limited one since permissible capacity of the vehicle was 9+1, it is to be
noted here that only one claim was filed arising out of the said accident. Therefore even the said defence was not available for the insurance
company. This position is also clear from the judgment of the Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Anjana Shyam & Ors.;
reported in 2007 (5) All MR 436. Â
Thus, the learned Chairman of the tribunal below, in my view, has correctly assessed the income of the deceased and has granted the
compensation. Be that as it may. In this appeal also, during the course of submissions, there was no whisper of challenge about the quantum of
compensation that was awarded in favour of the original claimants.
The learned Chairman, in my view, on the aforesaid conspectus of the matter, correctly and rightly recorded a finding that the insurance company
was required to pay compensation as indicated in the impugned order.
Thus, in my view, there is no merit in the appeal and it is required to be dismissed.
Now, the question of costs. I am reminded of the observations of the then Hon'ble Chief Justice of India Mr. Y. V. Chandrachud in Motor
Owners' Insurance Co. Ltd Vs. Jadhavji Keshavji Modi, reported in 1981 ACJ 507, wherein his Hon'ble Lordship observed thus:
“The victims of road accidents or their dependents are driven to wage a long and unequal battle against the insurance companies, which deny their
liability on every conceivable variety of factual disputations from 'who was driving the vehicle' to 'whose negligence was the sine qua non of the
accident'. The delay in the final disposal of motor accident compensation cases, as in all other classes of litigation, takes the sing out of the laws of
compensation because, an infant child who seeks compensation as a dependent of his deceased father has often to await the attainment of majority in
order to see the colour of the money.â€
In the present case, only after directions given by this Court, 50% of the amount of compensation was deposited. Even the application for
withdrawal of the said amount was also opposed and the application was rejected on 10.08.2009. Thus, even after lapse of 18 years, the minor son
and daughters who were aged about 3, 5 and 7 at the time of accident, have not seen the colour of money. Thus, in view of the discussion in the
foregoing paragraphs, in my view, this is a fit case wherein cost should be imposed on the insurance company and I quantify the costs at Rs.25,000/Â‐
(Rs. Twenty Five Thousand Only).
The claimants will be entitled to withdraw 50% of the amount deposited by the insurance company before this Court, forthwith along with interest
accrued thereon.
The insurance company is hereby directed to deposit the remaining 50% of the amount within a period of one month from today, along with interest as
granted by the tribunal and also the amount of costs.Â
If this remaining 50% amount and costs is not deposited within one month then in that event the appellant will require to pay additional interest of 2%
in addition to the interest granted by the tribunal below till the amount is deposited.
As soon as the remaining 50% amount, along with interest and the amount of costs, is deposited by the appellant before this Court, the claimants will
be entitled to withdraw the said amount, forthwith.
With this, the appeal dismissed.